Big Brother Is Watching ~ But We Won't Let You Prove It

Last week' s most distressing ~ or more precisely, frightening ~ news was that two Republican appointed judges of the Sixth Circuit reached what strikes me as a Kafka-esque ruling in denying a group of Plaintiffs who were very likely spied upon without warrants their day in court ~ based on an exceedingly narrowly drawn, & indeed, twisted, technicality, with the result that you, my friend, however much you value your privacy, & regardless whether spying on you is legal or not, cannot contest it. (WaPo article: http://www.washingtonpost.com/wp-dyn/content/article/2007/07/06/AR2007070600779.html )

A very bizarre result ~ a jaw-dropper, in fact. Last I checked, we are all still living in the USA as opposed to some flimsy 3rd-world dictatorship, where, as Karl Rove warned us, the guys in charge are colonels in mirrored sunglasses.

Unlike the lower court decision by Anna Diggs Taylor which found that the administration had admitted to the program & the fact that it had been carried out with no oversight, the Sixth Circuit, hearing the appeal, did not address the legality of the spying program itself (the one Americans would not know about if not for the New York Times telling us about it, & the same put into effect by Presidential fiat over the Department of Justice's & even the FBI's initial objections.)

The prevailing judges instead chose (at current DOJ's urgings) to focus on whether the Plaintiffs, who were, among others, lawyers representing Muslim detainees whose attorney-client privileged communications would have been seriously breached if the government was listening in without a warrant. They were turned away on the basis that they lacked standing to sue.

"Standing" is lawyer-speak & a basic legal concept, requiring that some harm has actually been done: in other words, you can't file a claim before a court unless & until some actual, legally-recognized harm has been done to you. I have no quarrel with that tenet (on its face, that is ~ the Supreme Court has raised the bar to keep people out in recent years), but it's also an exceedingly cramped decision in that the judges, 2 to 1, also accepted uncritically the DOJ's argument that any evidence could be forbidden to the Plaintiffs based on the government's say-so that any spying programs are "state secrets."

The LA Times reported that Judge "Batchelder wrote: 'The plaintiffs do not — and because of the state secrets doctrine cannot — produce any evidence that any of their communications have ever been intercepted by the NSA, under the TSP, without warrants.'

"Rather, she said, the plaintiffs had asserted 'a mere belief' that their overseas contacts were the types of people being targeted by the NSA.

When the lower court handed down its decision, then & only then did Bush acknowledge the previously existing FISA court's jurisdiction over the matter, so as to be able to argue in this appeal that the illegality of the spying program is now a moot issue ~ however, continuing to reserve the right to resurrect it unilaterally at any time. Moot it's not, in other words.

The state secrets argument is based on a 1953 Supreme Court decision in United States v. Reynolds that, according to the Constitution Project, has resulted in overbroad readings of the doctrine, &, ironically enough, in a case where the widows of Air Force personnel sued the government for the wrongful deaths of their husbands ~ they were forced to drop the case. But it turned out (much later) that there were no legitimate "state secrets" involved ~ the government was just trying to conceal its own wrongdoing. (Proving, yet again, that no irony is too heavy to be lost on, or ignored by, Bushco & its friends in the judiciary.)Read more about it: http://www.constitutionproject.org/

The question is not entirely resolved, however. Several other suits, including one to be heard in the Ninth Circuit, sitting in California, will be addressing the similar questions, & are not bound by the Sixth Circuit's decision.

On another front, & perhaps a more fruitful one, "Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) called the court decision 'a disappointing one that was not made on the merits of the case, yet closes the courthouse door to resolving it.' [A] panel has been conducting an investigation into the warrantless wiretapping program. Last month, it issued subpoenas to the administration, seeking documents related to the program's "authorization and legal justification."

The Bush Administration has already said it won't comply with the subpoenas, & a full-blown Constitutional crisis may well be in the making. Since Bushco's arrogance seems to know no bounds, it does appear that nothing short of drastic remedies will loosen its death grip on American democracy. At this point, it seems to be our last, best hope.

The paralells to the Nixon presidency are all too clear to be missed. John Dean wrote late last year on the topic, after the NYT broke the story of the illegal spying ~ Bush as the present-day Nixon, an article worth reviewing again now. http://writ.news.findlaw.com/dean/20051230.html

Your Demon would add that the comparison is not quite apt ~ Bush is far worse, as it seems he does it in an effort to provoke exact sort of crisis that Nixon resigned over rather than face impeachment. I predict Bush will not resign ~ he'll stay the course with every misguided & heretofore illegal policy he has so far pursued, & go down, if at all, as the American poster boy for the monarchial "unitary executive" legal theory, which some neocons now on the Supreme Court helped formulate. Long story short ~ impeachment is the strongest course of action.

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About Me

Former PoliSci major (still rabid), graduate of a "national" law school, former child prodigy in the literary arts (enjoyment of which law school wrecked entirely, but I hope to make up for lost time now)